HomeMy WebLinkAboutCP-21-CR-0000355-2011
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
SCOTT E. NASTELLI : CP-21-CR-0355-2011
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE
OF APPELLATE PROCEDURE 1925
Masland, J., July 10, 2012:--
Defendant, Scott E. Nastelli, appeals this Court’s imposition of a
mandatory minimum sentence following his conviction for unlawful drug delivery.
Defendant complains of the following matter on appeal:
1. The Court erred by imposing mandatory minimum
sentence under 18 Pa. C.S. §7508(a)(2)(ii) when the offense
involved pills.
Concise Statement, filed June 13, 2012. For the following reasons, the Superior
Court should affirm this Court’s judgment of sentence.
Following a jury trial, Defendant was convicted of unlawfully selling twelve
Percocet and forty-six Oxycontin to a confidential informant. After conviction, this
Court sentenced Defendant to a mandatory minimum term of incarceration of
three to five years based on the aggregate weight of the controlled substances.
See 18 Pa. C.S. §7508(a)(2)(ii). Defendant now argues that mandatory
sentencing based on aggregate weight should not apply to prescription drugs,
but only to street drugs, because those who deal in street drugs adulterate their
product with other substances to increase the product’s weight and their own
profit.
CP-21-CR-0355-2011
In so arguing, Defendant acknowledges that this issue has already been
decided by our Superior Court in Commonwealth v. Manuel, 844 A.2d 1 (Pa.
Super. 2004), appeal denied, 859 A.2d 768 (Pa. 2004). However, he notes that
Manuel was not heard by our Supreme Court and therefore asks this Court to
revisit the case’s rationale.
In Manuel, our Superior Court stated:
We have no reason to doubt that the Legislature was fully
aware that the mandatory sentence scheme utilizing “the
aggregate weight of the compound or mixture containing the
substance involved” specified in Section 7508(a)(2)(ii) would
be applied to pharmaceutical pills as Section 7508(a)(2)(ii)
states that it applies to subsection 13(a)(14) relating, inter
alia, to the prescription of controlled substances by
physicians. Furthermore, we note that the federal courts
analyzing similar language are unanimous in their
determination that a “sentencing court must include the
weight of the entire pharmaceutical pill and not just the
weight of the active narcotic ingredients.” United States v.
Limberopoulos, 26 F.3d 245, 252 (1st Cir.1994) (collecting
cases). Therefore, we find no error in the trial court's use of
the aggregate weight of the pills used to fill the prescription
written by Manuel.
Id. at 12-13 (emphasis added).
As Defendant’s Counsel candidly acknowledges, the holding in Manuel is
inescapable unless this Court consciously parts with binding appellate precedent.
This Court declines to do so. For this reason, the Superior Court should affirm
this Court’s judgment of sentence.
By the Court,
Albert H. Masland, J.
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CP-21-CR-0355-2011
Matthew P. Smith, Esquire
Assistant District Attorney
Timothy L. Clawges, Esquire
For Defendant
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